terion by which such price can be fixed, unless we go further and say the maximum price fixed by the government was the 'market price.' This is, as we understand it, the contention of the plaintiff. It is uncontradicted that, although there were other publications carrying quotations of sales of lumber, they all varied from the prices fixed by Shuster's price list and semimonthly concessions. This is very persuasive that for that reason the parties contracted with reference alone to that method of fixing the price, but also shows the impossibility of arriving at a 'market price' by looking to these other publications. Could the act of the government, under the war conditions then existing, fixing an arbitrary maximum price, establish a market price? We think not, and this view seems to be supported by the supreme court of Michigan in Lovejoy v. Michels (1891) 88 Mich. 15, 13 L.R.A. 770, 49 N. W. 901. While this case involves a different consideration of facts than in the instant case, it, with the discussion contained in note on page 771 of 13 L.R.A., is enlightening on the question in this case. The idea of a market price is based upon the untrammeled dealing in a commodity, by sellers and buyers unhampered by price-fixing by governments or monopolies. There was no such market existing subsequent to June 10, 1918, when the government fixed the maximum price." In Moorhead v. Union Light, Heat, & P. Co. (1918) 255 Fed. 920, it was held that a gas company which has accepted a franchise for a definite term, fixing a maximum price, is not entitled, on a bill in equity, to release from its contract and an injunction against the enforcement of the franchise ordinance merely because the existence of war has made the performance of the contract at the established rate unprofitable. See to the same effect, Muscatine Lighting Co. v. Muscatine (1919) 256 Fed. 929. In like manner it was held in Columbus R. Power, & Light Co. v. Columbus (1919) 249 U. S. 399, 63 L. ed. 669. 6 A.L.R. 1648. P.U.R. 1919D, 239, 39 Sup. Ct. Rep. 349, that the enforce ment of a franchise ordinance fixing street railway fares would not be enjoined though operating expenses had increased as a result of war, and particularly by reason of a 50 per cent increase in wages, ordered by the National War Labor Board. The court said: "It is undoubtedly true that the breaking out of the World War was not contemplated, nor was the subsequent action of the War Labor Board within the purview of the parties when the contract was made. That there might be a rise in the cost of labor, and that the contract might at some part of the period covered become unprofitable by reason of strikes or the necessity for higher wages might reasonably have been within their contemplation when the contract was made, and provisions made accordingly. There is no showing in the bill that the war or the award of the War Labor Board necessarily prevented the performance of the contract. Indeed, as we have said, there is no showing, as in the nature of things there cannot be, that the performance of the contract, taking all the years of the term together, will prove unremunerative. We are unable to find here the intervention of that superior force which ends the obligation of a valid contract by preventing its performance. It may be, and, taking the allegations of the bill to be true, it undoubtedly is, a case of a hard bargain. But equity does not relieve from hard bargains simply because they are such. It may be that the efficiency of the service and fairness in dealing with the company which performs such important and necessary service ought to require an advance in rates; such was the strongly announced opinion of the War Labor Board. But these and kindred considerations address themselves to the duly constituted authorities having the control of the subject-matter." In Black v. New Orleans R. & Light Co. (1919) 145 La. 179, 82 So. 81, the court sustained, against a taxpayer's suit, the action of a municipal council in granting to a street railway company a temporary increase of franchise rates because of the exigencies of war, and at the suggestion of the national authorities, so as to avoid possible impairment of transportation facilities during the war. In North Hempstead v. Public Service Corp. (1919) 107 Misc. 19, 176 N. Y. Supp. 621, affirmed upon opinion below in App. Div., 182 N. Y. Supp. 954, the action was brought to recover damages for the nonperformance of a contract whereby the plaintiff town had granted to the defendant the right to operate gas mains along public highways and in public places in the town. The defendant pleaded impossibility of performance because, owing to the existence of a state of war with Germany, the United States had taken control of and supervision over the distribution of steel and pipe, and the defendant had been unable to procure pipe for laying in the town, as required by the contract. It was held that the defendant could not avail itself of this defense, saying: "It may be conceded that the rules and regulations of the War Industries Board greatly increased the difficulty, and probably the expense, of securing pipe, but the difficulty so created stands in no other or different category than if created by any other cause or unforeseen contingency, such as scarcity of labor, strikes, increased taxation, or demands in excess of the supply. The controlling consideration is that neither the acquisition nor the use of the pipe for the purpose of fulfilling the obligation assumed by the defendant was forbidden or rendered illegal by any act of 'the law.' Official action increased the difficulty of performance, but imposed thereon no taint of illegality, and I am of the opinion that none of the cases hold that performance is excused by such a situation as is disclosed in this case. On the contrary, it has been held that increased difficulty and expense of performance, occasioned by a law enacted after the execution of a contract, never excuses performance." In Norfolk & W. R. Co. v. Public Service Commission (1918) 82 W. Va. 408, 8 A.L.R. 155, P.U.R. 1918E, 737, 96 S. E. 62, the court refused to suspend an order of the Public Service Commission requiring a railroad company to furnish shipping facilities to a coal mining company on the ground that it was not shown that the exigencies of war disabled the railroad company from the performance of its duty in this respect. It was said: "The argument is further made by the railway company that at this time its energies are fully required to meet the extraordinary demands made upon it because of the present state of war; that all of its resources in the way of steel rails, ties, and switches are needed for this purpose, and that it should not be required to furnish facilities to any shipper other than those already having such facilities, for the reason that to do so might require of it additional equipment, or additional work for its trains or crews, without producing any additional freight. As before stated, the granting of the facilities asked for here does not make any requisition upon the material resources of the railway company. It does not require the expenditure of one cent by it, and it does not show how the granting of the facilities asked for this shipper would increase its work so as to embarrass it in complying with its public duty. In the absence of such a showing we would not be justified in saying that this shipper should not be granted the facilities enjoyed by other shippers of coal. If it should turn out, in the operation of this switch connection for the business of the Trace Company, that an undue burden is imposed upon the railway company, and that its operations are crippled, and it is hindered and delayed in performing its paramount duty to the government, upon representation of such condition to the Director General of Railroads, he has ample power to give the railway company relief, and we do not doubt that, upon a showing of that character being made, such relief will be promptly afforded." In Boret v. L. Vogelstein & Co. (1919) 188 App. Div. 605, 177 N. Y. Supp. 402, it appeared that the parties entered into an agreement for the sale and purchase of copper, the purchase price to be arrived at by averag ing the quotations of prices published in a trade journal. Subsequently the United States entered the European War, and the price of the material in question was fixed by the government. The parties submitted to the court on an agreed statement of facts the question whether the contract was rendered null and void by reason of the conditions created by the action of the United States government. Holding that the contract was valid and enforceable, the court said: "The contract did not fix a price. It clearly expressed the intention of the parties that the copper was to be paid for at the prevailing market price at the time of the various deliveries. The contract was entered into after all the great powers except the United States had become involved in the war with Germany. It was to extend eight years. The parties must have contemplated that unusual and abnormal márket conditions would be occasioned by the war, and that there was a possibility of the United States becoming involved, and that the performance of the contract might have been rendered difficult or burdensome. Parties cannot be relieved from the performance of their contracts merely for those reasons, but only where, by acts of law, the performance thereof has become impossible or illegal." - - In Meyer v. Sullivan (1919) Cal. App. 181 Pac. 847, it appeared that the defendants contracted to deliver a cargo of wheat to the plaintiffs "f. o. b. Kosmos steamer at Seattle." Subsequently, owing to the war conditions, the Kosmos line canceled their sailing schedule, and the defendants refused to deliver the wheat. on the ground that no Kosmos steamer was available at Seattle on which the wheat could be loaded, and therefore that the contracts were canceled. Affirming a judgment for the plaintiffs for breach of contract, the court said: "Defendants contend that both buyers and sellers were excused from performance of the contracts, by reason of the fact that war conditions rendered the contemplated means of performance unavailable; that is, because it was impossible to furnish a Kosmos steamer, both parties were released from all liability in the matter. We cannot agree with such contention. It is admitted that the plaintiffs were at all times ready, willing, and able, and attempted, to perform their part of the contract. There is no showing but that defendants were fully able to deliver the wheat contracted for, and as directed by the plaintiffs, at the place designated." In Salembier, L. & Co. v. North Adams Mfg. Co. (1919) 178 N. Y. Supp. 607, it appeared that the defendant contracted to sell and deliver to the plaintiff woolen goods, which it failed to do. It was alleged in an affidavit for an attachment, that after it became evident that the defendant was not going to perform its contract, the plaintiff attempted to obtain the material elsewhere, but found that practically the entire woolen goods supply of the United States had been preempted by the government, and it was impossible to obtain the material. The defendant claimed that this statement showed the impossibility of performance on its part. The court held that this was an unwarranted construction of the words used, since there was nothing in the statement to warrant the conclusion that the defendant could not have performed had it taken proper preparatory steps in season. In The Eros (1916) 241 Fed. 186, affirmed in (1918) 163 C. C. A. 295, 251 Fed. 45, it appeared that the libellant, an American citizen, chartered a yacht of a citizen of France, and under the provisions of the agreement, the yacht proceeded to New York, where it was when the European War broke out. After extended and unsatisfactory negotiations between the libellant and the master of the yacht, the latter, acting on instructions from the owner, informed the libellant that "the whole thing is off," whereupon the libellant treated the contract as broken, and subsequently libeled the yacht for breach of the charter party. Rendering a decree for the libellant, the court said: "It is clear that Baron De Rothschild's attitude constituted a breach of the charter party by him. unless it was legally justified or ex its express terms the agreement was to be construed according to English law. Under that law, as under our own, the Baron De Rothschild's obligation to supply and maintain a crew, and to send the yacht wherever the charterer wished to go within the limits prescribed, was absolute. The outbreak of war between France and other powers in no way relieved him of that obligation. It did not justify his refusal to permit the yacht to go outside the territorial waters of the United States, although performance may have been rendered more hazardous." In Wolf v. Park & Tilford (1919) 176 N. Y. Supp. 768, an action by the purchaser of goods for the failure of the seller to deliver the same, the seller was permitted to offer in evidence the various Federal orders concerning an embargo on domestic freight which prevented interstate shipments during the period covering the time of delivery. Although it did not expressly so appear, the embargo was presumably laid as the result of war conditions. The court held that the admission of the evidence was error, as the Federal embargo was no defense to the action. e. Right to resume performance after cessation of governmental interfer ence. It will be noted that in the reported case (BROOKE TOOL MFG. Co. v. HYDRAULIC GEARS Co. ante, 1507) it is held that the seller of goods, who, by reason of governmental requirements, has been unable to make delivery within the time provided for by the contract, cannot compel the buyer to take delivery after the expiration of such period. In STANDARD SCALE & SUPPLY Co. v. BALTIMORE ENAMEL & NOVELTY CO. (herewith reported) ante, 1502, it is held that a seller of goods was not relieved from the consequences of noncompliance with his contract to make prompt delivery by the fact that it was occasioned by an embargo on shipments imposed by the United States government, while in control of the railroads. 9 A.L.R.-96. It has been held, however, that the buyer is under obligation to accept goods after the time fixed for their delivery where the order therefor was taken "subject to war hazards and to delays due to government action over which the seller has no control." Barish v. Brander (1920) 180 N. Y. Supp. 447. III. Effect of provision in contract suspending or excusing performance in certain contingencies. a. As excluding doctrine of commercial frustration. (Supplementing annotation in 3 A.L.R. p. 41.) In Pacific Phosphate Co. v. Empire Transport Co. (1920) 36 Times L. R. (Eng.) 750, it was held that a contract to provide tonnage for the carriage of phosphate between certain points during a stated period was dissolved by the change in circumstances occasioned by the war, although it provided that "in the event of a war in which Great Britain is engaged, and which is likely to affect the safety of the steamers or their cargoes, shipments may, at the option of either party, be suspended until the termination of the war, and the period of such suspension shall be added on to the end of the contract period," as the parties, in entering into their contract, never contemplated such a war as had actually happened, or its consequences. b. As covering situation occasioned by war. 1. In charter parties or bills of lading. (Supplementing annotation in 3 A.L.R. p. 43.) In The Claveresk (1920) 264 Fed. 276, it is held that an order given by the British admiralty to the owner, requiring him on a day certain to place his vessel, then in foreign waters, at the service of admiralty agents, there to remain for an indefinite period, was a restraint of princes, within the exception clause of the charter party. The owners of a British vessel are entitled to rely upon the "restraint of princes" clause in the charter, notwithstanding the commandeering of the vessel by the British government took place while the vessel was in an Italian harbor, since, while technically the government might not have been able to enforce its decrees and orders as long as the ship remained in harbor, it might have been immediately seized and taken upon reaching the high seas. The Frankmere (1920) 262 Fed. 819. In Aktieselskabet Olivebank V. Dansk Svovlsyre Fabrik [1919] 2 K. B. (Eng.) 162, 120 L. T. N. S. 629, 88 L. J. K. B. N. S. 745, 35 Times L. R. 373, 24 Com. Cas. 178, it appears that by the terms of a charter party the plaintiffs' vessel was to proceed with a cargo of nitrate to one of several ports in the United Kingdom for orders to discharge the cargo at a safe port in the United Kingdom or one of several named ports in Denmark. The vessel, on arriving at one of the ports in the United Kingdom, was ordered by the defendants to a Danish port, which had become an impossible port, owing to the fact, known to the defendants, that the further importation of nitrate into Denmark had been prohibited by the British government. The master thereupon discharged the cargo in the United Kingdom. In an action against the defendants for freight it is held that the defendants were not entitled to claim that the venture had failed under a "restraint of princes" clause in the charter party, but were liable for the freight under an implied term of the contract to the effect that the defendants should order the vessel to a possible port, and so give the plaintiffs an opportunity of earning freight. In South Atlantic S. S. Line v. London-Savannah Naval Stores Co. (1918) 166 C. C. A. 476, 255 Fed. 306, it appeared that a steamship line, before the outbreak of war, agreed to furnish freight room for the carriage of naval stores from Florida to England. The contract contained a provision that it was subject to the conditions contained in the bill of lading, and the bill gave the carrier the liberty to call at any port or ports, in or out of the customary route. After the outbreak of war, the steamship company tendered a ship, reserving the right to forward the cargo by way of a con tinental port, under the provision in the bill of lading, but the shipper refused unless the trip was made direct to the British Isles, as the existing war conditions increased the risk of loss of the cargo in shipping by way of a continental port. The court held that the demand of the shipper that the carrier forego the right which the contract reserved to it, of going by way of a continental port, was unwarranted, and the shipper could not recover for the failure of the carrier to perform the contract. 2. In contracts of sale. (Supplementing annotation in 3 A.L.R. p. 48.) In Atlantic Steel Co. v. R. O. Campbell Coal Co. (1919) 262 Fed. 555, it was held that a provision in a contract for the sale of a quantity of coal, to be delivered from time to time during a stated period, at the e rate of 1,000 tons per month, that "if the mines from which this coal is to be shipped are unable to operate by reason of mining troubles, or on account of other causes beyond their immediate control, the first party is not to be liable for failure to make shipments during said period," operated to exonerate the seller from liability to make shipments during the period while the output of the mine was under the control of the Federal Fuel Administration, the court saying: "While in a certain sense the mines did operate, they did not operate under the control of the defendant, nor was it able to avail itself of their operation in the discharge of its contracts. It may fairly be said that, within the meaning of these parties, on account of causes beyond defendant's control, it could not operate its mine for the purpose of meeting the shipments due during the period of Federal control, and that the stipulation that it should not be liable for the failure to make shipment is to be applied." In Roessler & H. Chemical Co. v. Standard Silk Dyeing Co. (1918) 166 C. C. A. 223, 254 Fed. 777, the question at issue was the construction of a provision in a contract of sale, purporting to exonerate the seller from liability for damage or delay occasioned by |